Sheet Metal Workers Local 20 (Baylor Heating)

National Labor Relations Board - Board Decisions

Jan 22, 1991

301 N.L.R.B. 258 (N.L.R.B. 1991)

258
301 NLRB No. 29
SHEET METAL WORKERS LOCAL 20 (BAYLOR HEATING)
1 All subsequent dates are in 1987 unless otherwise noted.
2 Art. X, sec. 8, in relevant part, is as follows:
Section 8. In addition to the settlement of grievances arising out of in-
terpretation or enforcement of this agreement as set forth in the preceding
sections of this Article, any controversy or dispute arising out of the fail-
ure of the parties to negotiate a renewal of this Agreement shall be settled
as hereinafter provided:
(a) Should the negotiations for renewal of this Agreement become
deadlocked in the opinion of the Local Union or of the Local Contractor’s
Association, or both, notice to that effect shall be given to the National
Joint Adjustment Board.
If the Co-Chairmen of the National Joint Adjustment Board believe the
dispute might be adjusted without going to final hearing before the Na-
tional Joint Adjustment Board, each will then designate a panel represent-
ative who shall proceed to the locale where the dispute exists as soon
as convenient, attempt to conciliate the differences between the parties
and bring about a mutually acceptable agreement. If such panel represent-
atives or either of them conclude that they cannot resolve the dispute, the
parties thereto and the Co-Chairmen of the National Joint Adjustment
Board shall be promptly so notified without recommendation from the
panel representatives. Should the Co-Chairmen of the National Joint Ad-
justment Board fail or decline to appoint a panel member or should notice
of failure of the panel representatives to resolve the dispute be given, the
parties shall promptly be notified so that either party may submit the dis-
pute to the National Joint Adjustment Board.
The dispute shall be submitted to the National Joint Adjustment Board
pursuant to the rules as established and modified from time to time by
the National Joint Adjustment Board. The unanimous decision of said
Board shall be final and binding upon the parties, reduced to writing,
signed and mailed to the parties as soon as possible after the decision
has been reached. There shall be no cessation of work by strike or lock-
out unless and until said Board fails to reach a unanimous decision and
the parties have received written notification of its failure.
(b) Any application to the National Joint Adjustment Board shall be
upon forms prepared for that purpose subject to any changes which may
be decided by the Board from time to time. The representatives of the
parties who appear at the hearing will be given the opportunity to present
oral argument and to answer any questions raised by members of the
Board. Any briefs filed by either party including copies of pertinent ex-
hibits shall also be exchanged between the parties and filed with the Na-
tional Joint Adjustment Board at least twenty-four (24) hours in advance
of the hearing.
3 NJAB is made up of representatives of the Sheet Metal Workers Inter-
national Association and the Sheet Metal and Air Conditioning Contractors
National Association (SMACNA). Although the Association is a member of
SMACNA, the Employer is not.
Sheet Sheet Metal Workers Local Union No. 20, a/w
Sheet Metal Workers’ International Associa-
tion, AFL–CIO and Baylor Heating and Air
Conditioning, Inc. Case 25–CB–6256
January 22, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 15, 1989, Administrative Law Judge
Stephen J. Gross issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent Union filed cross-exceptions
and a brief both in support of its cross-exceptions and
in opposition to the General Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
I. FACTUAL FINDINGS
In August 1984, Baylor Heating and Air Condi-
tioning, Inc., the Employer, voluntarily executed a col-
lective-bargaining agreement (the 1984 agreement)
identical to the existing agreement between Sheet
Metal Workers Local Union No. 20, the Respondent,
and the Sheet Metal Contractors Association of Evans-
ville, Inc. (the Association). The contract between the
Employer and the Respondent, a prehire agreement
lawful under Section 8(f), provided that it would be ef-
fective from May 1, 1984, through April 30, 1987. The
Employer was not a member of the Association at the
time it agreed to adopt the agreement, and it did not
become a member thereafter.
In early 1987,1 the Employer notified the Respond-
ent that it would not agree to a new collective-bar-
gaining agreement. At about the same time, the Re-
spondent notified the Employer of its desire to make
changes in the terms of the expiring contract to be-
come operative in their renewal agreement. Thereafter,
prior to April 30, the Respondent expressed to the Em-
ployer its willingness to negotiate for an agreement to
succeed the 1984 agreement. The Employer declined,
and maintained its position that it would not sign an-
other contract when the current one expired. The Re-
spondent filed an 8(a)(5) charge against the Employer
with the Board. On April 15, the Acting Regional Di-
rector for Region 25 dismissed the charge, citing the
Employer’s ability to repudiate its 8(f) relationship
with the Respondent at contract expiration under John
Deklewa & Sons, Inc., 282 NLRB 1375 (1987), enfd.
sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770
(3d Cir. 1988), cert. denied 109 S.Ct. 222 (1988).
On May 1, the Employer withdrew recognition of
the Respondent as the collective-bargaining representa-
tive of its unit employees. In late May, the Respondent
initiated the contractual interest arbitration process pur-
suant to article X, section 8 of the Agreement,2 re-
questing the National Joint Adjustment Board (NJAB)
to resolve its dispute with the Employer.3 The Re-
spondent proposed to NJAB that the Employer be
bound to a new agreement essentially the same as the
1984 contract; the Respondent’s submission thus in-
cluded the interest arbitration provisions of the pre-
ceding contract. The Respondent also proposed an
itemized list of changes in the language of various arti-
cles of the agreement; one of these proposed changes
was the replacement of the term ‘‘Local Contractor’s
Association’’ with the term ‘‘employer(s) representa-
tives’’ in the first paragraph of subsection (a) of article
X, section 8. Although given notice, the Employer de-
259SHEET METAL WORKERS LOCAL 20 (BAYLOR HEATING)
4 NJAB’s order referred to art. X, sec. 8 as ‘‘modified to those instances
when parties both agree.’’ The order also stated:
It is not the intent of the NJAB to impose any non-mandatory subjects
of bargaining upon an unwilling party. In the event the National Labor
Relations Board or any court having jurisdiction over the matter deter-
mines that any provision of the agreement imposed by the NJAB herein
is a non-mandatory subject of bargaining to which a party objected, the
provision will be deleted, and the parties, in that event are directed to
enter into negotiations to replace the deleted provision with one that is
a mandatory subject of bargaining. In the event the parties cannot agree
on a replacement for the non-mandatory provision, the NJAB retains ju-
risdiction to resolve that issue.
5 Sheet Metal Workers Local 20 v. Baylor Heating, 688 F.Supp. 462
(S.D.Ind. 1988), affd. 877 F.2d 547 (7th Cir. 1989).
6 As set forth in fn. 4, supra, NJAB limited the nature of the interest arbitra-
tion provisions in the new contract it imposed on the parties. To the extent
that NJAB’s modification of the provisions may have been ambiguous, the dis-
trict court and the court of appeals made clear that the award was not enforce-
able with regard to a new interest arbitration procedure imposed against the
Employer’s will. See 688 F.Supp. at 473–474; 877 F.2d at 555–556. Thus, the
award ‘‘does not saddle the parties with a perpetual cycle of binding interest
arbitration.’’ Collier, supra at fn. 9.
clined the opportunity to participate in the NJAB pro-
ceeding.
On June 24, NJAB ordered the Employer to execute
a 4-year agreement retroactive to June 1, incorporating
the contractual terms and conditions NJAB had re-
cently imposed in a new 4-year agreement between the
Respondent and the Association. The new contract in-
cluded interest arbitration provisions, with significant
limitations.4 After the Employer refused to execute the
new agreement, the Respondent in October sought en-
forcement of the NJAB award in Federal district court.
The Respondent’s effort was successful, and the Em-
ployer’s appeal was denied by the court of appeals.5
In November, the Employer filed an unfair labor prac-
tice charge, and in September 1988 the complaint in
the instant case issued, alleging that the Respondent
violated Section 8(b)(1)(B), first, by seeking to bind
the Employer to a new collective-bargaining agreement
through its NJAB submission although the Employer
had lawfully repudiated its 8(f) relationship with the
Respondent and, second, by seeking enforcement of
the NJAB award in Federal court.
II. THE ADMINISTRATIVE LAW JUDGE’S DECISION
In a decision issued prior to our Decision and Order
in Electrical Workers IBEW Local 113 (Collier Elec-
tric), 296 NLRB 1095 (1989), the judge, on the basis
of a stipulated record, held that, insofar as the Re-
spondent’s submission to NJAB and subsequent court
enforcement action sought only to enforce the interest
arbitration clause in the 1984–1987 contract, the Re-
spondent did not violate the Act, but that insofar as the
Respondent’s submission to NJAB sought to impose
an interest arbitration provision on the Employer in the
new contract, it violated Section 8(b)(1)(B) of the Act.
In finding no violation as to the basic NJAB submis-
sion and court action, the judge recognized that the
Employer had no representative on the NJAB panel
that resolved the terms of the new collective-bar-
gaining agreement. He concluded, however, that so
long as the submission to NJAB and the related court
action had a reasonable basis—i.e., so long as the Re-
spondent could reasonably believe that the interest ar-
bitration provisions of the 1984–1987 contract (to
which the Employer had agreed) governed negotiations
for a new agreement—then there was no unlawful co-
ercion or restraint within the meaning of Section
8(b)(1)(B). Relying almost exclusively on the Re-
spondent’s success at the trial and appellate levels in
its lawsuit, the judge concluded that the Respondent
acted reasonably in attempting to bind the Employer to
a new agreement through enforcement of the interest
arbitration clause, notwithstanding the right enjoyed by
a construction industry employer under John Deklewa
& Sons, supra, to repudiate a collective-bargaining re-
lationship on the expiration of an 8(f) prehire agree-
ment.
The judge found unlawful the Respondent’s inclu-
sion of an interest arbitration clause in its submission
to NJAB because this constituted attempting to force
a nonconsenting employer to have disputes over future
contract negotiations determined by a body in which it
had no representation. The judge found that the Re-
spondent could not reasonably have concluded this was
lawful, because seeking to impose an interest arbitra-
tion clause through interest arbitration was unlawful
under Board precedent at the time the Respondent
acted. The judge noted that both the district court and
the appellate court expressed the same view concerning
the unlawfulness of such a clause.6
Although the judge was doubtful whether Bill John-
son’s Restaurants v. NLRB, 461 U.S. 731 (1983), ap-
plied to interest arbitration proceedings, he concluded
that, in any event, his holdings were consistent with
that case. In this regard, he noted that the Respondent
had prevailed in court on its basic claim that a new
contract could be imposed through interest arbitration
and that the Respondent’s apparent view that a new in-
terest arbitration clause could be included in that con-
tract was rejected by those courts.
III. ANALYSIS
For the following reasons, we affirm the judge’s dis-
missal but reverse his finding of a violation.
In Collier, supra, the Board addressed the question
whether a union violates the Act by submitting unre-
solved bargaining issues to interest arbitration pursuant
to a multiemployer contract when there has been a
timely withdrawal from the employer association by
the employer with whom the union is negotiating. In
the instant case, the Employer was never a member of
the Association; rather, it executed a collective-bar-
gaining agreement identical to the Association’s agree-
ment as an independent entity. In our view, the Collier
analytical framework is no less applicable to an inde-
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Unlike Collier, the complaint in the instant case does not allege a violation
of Sec. 8(b)(3). In addition, this case differs from Collier in that the collective-
bargaining agreement containing the interest arbitration provisions is an 8(f)
agreement. Because we find, infra, that there is a reasonable basis in fact and
law for the Respondent’s submission of unresolved bargaining issues to inter-
est arbitration, we find it unnecessary to address the question of whether a vio-
lation of Sec. 8(b)(1)(B) would have been established here if the 8(f) agree-
ment did not even arguably bind the Employer to the interest arbitration provi-
sions.
8 The Acting Regional Director’s dismissal of the Respondent’s 8(a)(5)
charge on April 15 in reliance on the Employer’s Deklewa privilege is not dis-
pendent signatory to a previously negotiated multiem-
ployer agreement than to an employer who has timely
withdrawn from the employer association after the
agreement has been negotiated. The Employer’s execu-
tion of the 1984 contract clearly represents its general
assent to the terms and conditions negotiated between
the Respondent and the Association and embodied in
the agreement.
Under Collier, the Board considers whether there is
a reasonable basis in fact and law for a union’s sub-
mission of unresolved bargaining issues to interest ar-
bitration. If such a basis exists, the union will be free
to invoke its contract rights, including pursuit of a
court action to enforce the resulting agreement, without
violating the Act. If, on the other hand, the agreement
does not even arguably bind the employer to the inter-
est arbitration provisions, then the union’s submission
of unresolved bargaining issues to interest arbitration
would constitute unfair labor practices with respect to
coercing the employer in the selection of its collective-
bargaining representative.
Collier emphasized, however, that the presence of
an interest arbitration clause in a collective-bargaining
agreement does not relieve employers and unions of
their responsibilities to engage in good-faith bar-
gaining, and on proper invocation of its jurisdiction the
Board will review the bargaining for a renewal agree-
ment to ensure that the parties have bargained in good
faith prior to the submission of any unresolved issues
to interest arbitration.7
In analyzing the instant case, we note at the outset
that by virtue of the Employer’s execution of the 1984
agreement, there can be no serious dispute that it, like
the Respondent, is a ‘‘party’’ to its contract. See
C.E.K. Industrial Mechanical Contractors, 295 NLRB
635 (1989), enfd. docket No. 89–2008 (1st Cir. 1990).
We also note that there is no language in the agree-
ment explicitly stating that an employer executing the
agreement independent of the Association is not bound
by the contract’s interest arbitration provisions.
Recently, in Sheet Metal Workers Local 54 (Texas
Sheet), 297 NLRB 672 (1990), and Sheet Metal Work-
ers Local 283 (Conditioned Air), 297 NLRB 658
(1990), we applied the Collier framework with regard
to interest arbitration provisions materially identical to
the article X, section 8 provisions in the instant case.
As stated above, the Employer’s status here is not sig-
nificantly different for application of Collier than that
of individual employers who have withdrawn from the
employer association—the situation in both Texas
Sheet and Conditioned Air. Thus, we find the analyses
of the article X, section 8 language in those two cases
controlling here. See Texas Sheet, supra at 677–678;
Conditioned Air, supra at 650. Accordingly, the fre-
quent references in article X, section 8 of the 1984
agreement, see footnote 2, supra, to the ‘‘parties’’ and
their rights and obligations under the interest arbitra-
tion process establish, arguably, that the Employer, as
a party to its collective-bargaining agreement, is cov-
ered by the interest arbitration provisions.
We recognize that the collective-bargaining agree-
ment here is an 8(f) agreement and that the rights and
obligations of parties with respect to such agreements
are governed by our decision in Deklewa, supra; we
see nothing in Deklewa, however, that mandates a
change in the result here.
Deklewa established new principles designed to pro-
vide greater stability in the construction industry by
precluding parties from unilaterally repudiating their
voluntary agreements and to enhance employee free
choice by insuring that such voluntary agreements
shall not be a bar to petitions filed pursuant to Section
9(c) or (e). Deklewa thus requires the parties to an 8(f)
agreement to comply with the agreement unless the
employees vote, in a Board-conducted election, to re-
ject or change their bargaining representative. Deklewa
also permits either party to repudiate the 8(f) relation-
ship on the expiration of the agreement. We see noth-
ing in these principles to prevent an employer and a
union from voluntarily agreeing to interest arbitration
in the prehire context.
The Board has found that Deklewa does not pre-
clude a finding that an 8(f) agreement may, in appro-
priate circumstances, automatically renew. C.E.K. In-
dustrial Mechanical Contractors, supra, at 636 fn. 4.
Similarly, we find that it does not preclude the inclu-
sion of an interest arbitration provision. Like a provi-
sion for automatic renewal, an interest arbitration pro-
vision contemplates a renewal of the agreement. It dif-
fers principally by leaving open the terms and pre-
scribing a means of resolving disputes arising from the
failure to negotiate the renewal.
Here, the interest arbitration clause requires submis-
sion to NJAB following any ‘‘failure of the parties to
negotiate a renewal of this Agreement.’’ Thus, the
clause, at least arguably, binds the Employer to a re-
newal of the agreement and to the NJAB resolution of
disputes concerning that renewal. In these cir-
cumstances, it may be argued that the parties have
agreed to extend their voluntary contractual relation-
ship beyond the expiration date and that the Deklewa
privilege to repudiate had not yet been triggered at the
time of the NJAB submission.8
261SHEET METAL WORKERS LOCAL 20 (BAYLOR HEATING)
positive of the issue in the circumstances of this case. See Teamsters Local
483 (Ida Cal), 289 NLRB 924, 930 (1988).
9 Although the parties did not engage in negotiations prior to the Respond-
ent’s submission to NJAB, it is apparent from the facts of this case that the
Respondent stood ready to negotiate a renewal agreement while the Employer
declined to meet. Thus, the absence of bargaining prior to the Respondent’s
submission to NJAB is not indicative of a lack of good faith on the part of
the Respondent and therefore does not taint the submission. See Collier, supra
at 1098. In any event, there is no 8(b)(3) allegation in this case. See Condi-
tioned Air, supra at 1097 fn. 9.
10 Our application of Collier makes it unnecessary for us to consider the de-
cisions of the district court and the court of appeals enforcing the NJAB award
in terms of collateral estoppel and issue preclusion. A ‘‘reasonable basis in
fact and law’’ is the standard the Respondent must meet in the circumstances
here, and that is what we have found, independently of the courts’ decisions.
11 The two other cases cited by the judge have virtually no bearing on the
particular 8(b)(1)(B) violation the judge found. Thus, Electrical Workers IBEW
Local 135 (La Crosse Electrical), 271 NLRB 250 (1984), did not involve an
alleged 8(b)(1)(B) violation, and Electrical Workers IBEW Local 532 (Brink
Construction), 291 NLRB 437 (1988), did not involve matters relating to inter-
est arbitration.
12 We note, as does our dissenting colleague, that the Respondent’s submis-
sion included a requested modification of the language in subsection (a) of art.
X, sec. 8. As this was just one of several proposed changes on an itemized
list submitted by the Respondent affecting various articles of the prospective
collective-bargaining agreement, and there is no other evidence establishing
the particular circumstances of the proposed change in the interest arbitration
mechanism, distinct from the other proposed changes, we conclude that this
was no more than one aspect of a routine request for contractual language
modifications, quite possibly the very proposals the Respondent would have
lawfully presented to the Employer, had its lawful attempt to negotiate a suc-
cessor contract not been refused.
1 The Respondent itself highlighted the limited nature of the instant contrac-
tual provision: in its submission to NJAB the term ‘‘Local Contractor’s Asso-
ciation’’ in the first paragraph of subsec. (a) of art. X, sec. 8 was replaced
by the term ‘‘employer(s) representative’’ in the proposed version, thereby in-
dicating a desire to expand the scope of the rights and obligations under the
interest arbitration provisions.
Further, it is apparent that the assertedly binding art. X, sec. 8 language put
before both Federal courts in the related Sec. 301 action here was not from
the agreement the Employer signed in 1984, but in fact was the modified lan-
guage the Respondent proposed to NJAB for the 1987 renewal agreement. See
Sheet Metal Workers Local 20 v. Baylor Heating, 688 F.Supp. 462, 465, 467
(S.D.Ind. 1988); cf. fn. 2 of the majority opinion, supra.
We therefore find that the interest arbitration provi-
sions of the parties’ contract are arguably binding on
the Employer and, accordingly, that the Respondent’s
submission of the dispute to NJAB was supported by
a reasonable basis in fact and law.9 Accordingly, we
adopt the judge’s conclusions that the Respondent did
not violate Section 8(b)(1)(B) by its submission of the
dispute to NJAB and by its subsequent effort to en-
force NJAB’s award in Federal court. Collier, supra at
1098.10
We do not agree, however, with the judge’s finding
that the Respondent violated Section 8(b)(1)(B) to the
extent that its NJAB submission included interest arbi-
tration provisions in the prospective collective-bar-
gaining agreement. The decisions the judge relied on
in support of his determination are simply inapposite
in light of the particular facts of this case. Thus, in
Sheet Metal Workers Local 59 (Employers Assn.), 227
NLRB 520 (1976), and in Sheet Metal Workers Local
263 (Sheet Metal Contractors), 272 NLRB 43 (1984),
the critical factor supporting the Board’s 8(b)(1)(B)
finding was the union’s coercive insistence in collec-
tive-bargaining negotiations on inclusion of an interest
arbitration clause in any new agreement.11
In the instant case, no negotiations took place be-
tween the parties, and there was no specific proposal
made to the Employer or discussion between the par-
ties concerning interest arbitration provisions in a new
agreement. Thus, there is no factual basis here for a
finding of insistence to impasse on such a clause. In-
stead, in light of the Employer’s refusal to negotiate
and its withdrawal of recognition, the Respondent sub-
mitted to NJAB a proposal consisting essentially of the
1984 collective-bargaining agreement in its entirety,
which included interest arbitration provisions.
Thus, we find the evidence insufficient to establish
that the Respondent made a distinct, specific request of
NJAB to include interest arbitration provisions in a
new agreement. Rather, it apparently acted essentially
only to maintain the status quo regarding this provi-
sion.12 Further, when NJAB significantly limited the
scope of the interest arbitration provisions in its award,
see footnote 4 supra, the Respondent did not seek fur-
ther consideration or otherwise protest NJAB’s action.
In light of the particular facts above, we conclude that
there is insufficient evidence of coercion to support an
8(b)(1)(B) finding, i.e., a finding that the Respondent
attempted to force the Employer’s choice of collective-
bargaining representative in future collective-bar-
gaining negotiations through inclusion of the interest
arbitration provisions in its submission to NJAB. Ac-
cordingly, we reverse the judge’s finding of a viola-
tion.
ORDER
The complaint is dismissed.
CHAIRMAN STEPHENS, dissenting.
1. Pursuant to the analyses set forth in my dissenting
opinions in Electrical Workers IBEW Local 113 (Col-
lier Electric), 296 NLRB 1095 (1989), Sheet Metal
Workers Local 54 (Texas Sheet), 297 NLRB 672
(1990), and Sheet Metal Workers Local 283 (Condi-
tioned Air), 297 NLRB 658 (1990), I would find that
the Respondent’s submission of its dispute with the
Employer to NJAB for interest arbitration, and its sub-
sequent Section 301 suit to enforce NJAB’s award,
violated Section 8(b)(1)(B) of the Act. The collective-
bargaining agreement here, and specifically article X,
section 8, does not set forth an unequivocal waiver of
the 8(b)(1)(B) right of this Employer, an independent
signatory of the Association agreement, any more than
did the identical contractual language in Texas Sheet
and Conditioned Air, supra, which concerned employ-
ers who had timely withdrawn from an employers as-
sociation.1
The fact that the parties here had an 8(f) relation-
ship, and the Employer’s reliance on John Deklewa &
Sons, Inc., 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir.
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Sheet Metal Workers Local 59 (Employers Assn.), 227 NLRB 520, 521
(1976). See also Sheet Metal Workers Local 263 (Sheet Metal Contractors),
272 NLRB 43 (1984) (finding 8(b)(1)(B) violation in a case in which, after
interest arbitration award, union refused to sign any agreement not including
the interest arbitration clause). In certain other cases, no violation of Sec.
8(b)(1)(B) has been alleged, but violations of Sec. 8(b)(3) have been found
on the theory that the union insisted to impasse on inclusion of interest arbitra-
tion clauses in the agreement even prior to the submission to the interest arbi-
tration forum. See, e.g., NLRB v. Columbus Printing Pressmen, 543 F.2d 1161,
1166 (5th Cir. 1976); Electrical Workers IBEW Local 135 (La Crosse Elec-
trical), 271 NLRB 250, 251 (1984). See also Milwaukee Newspaper & Graph-
ic Communications Union Local 23 v. Newspapers, Inc., 586 F.2d 19 (7th Cir.
1978), cert. denied 440 U.S. 971 (1979) (Sec. 301 action acknowledging the
Board’s 8(b)(3) precedent and reading this as precluding an effort to have an
interest arbitration clause considered in interest arbitration over the other par-
ty’s objection).
3 NJAB had conditioned inclusion of interest arbitration on its not being
found unlawful by the Board or a court. Both the district court and the court
of appeals read it out of the agreement that they enforced because they con-
cluded that it was contrary to the policy of the Act to enforce it against a
party’s consent and that NJAB therefore lacked authority to include it. See fns.
4 and 6 in the majority opinion, supra.
1988), cert. denied 109 S.Ct. 222 (1988), to terminate
that relationship lawfully when the agreement expired,
lends further support to my view that the Employer did
not clearly and unmistakably agree to the interest arbi-
tration provisions here. As parties to a prehire agree-
ment authorized by Section 8(f) of the Act, neither the
Union nor the Employer had any duty under the Act
to bargain with the other following the April 30, 1987
expiration of the 1984–1987 collective-bargaining
agreement. Under Deklewa, after that date the Union
enjoyed no presumption of majority status, and both
parties were entitled to repudiate the 8(f) bargaining
relationship. The Employer promptly exercised this
privilege on May 1, 1987.
Deklewa had not yet issued at the time this collec-
tive-bargaining agreement was entered. Hence, I find it
difficult to conceive that the Employer clearly and un-
mistakably waived the right it attempted to exercise
here of terminating the bargaining relationship entirely.
Furthermore, although art. X, sec. 8, refers to renewal
negotiations, it nowhere states that parties, however
defined, are required to engage in renewal negotiations.
It simply describes the procedures that shall apply to
controversies arising out of such negotiations. I find it
highly unlikely, for example, that if a union disclaimed
representation of employees in the area covered by the
expiring contract, either this Board or any court would
find that the union was nonetheless bound, by virtue
of the interest arbitration clause alone, to negotiate
new agreements with any area employers that had been
bound to the expiring agreement and that wanted a
successor agreement or agreements.
In sum, I find that the interest arbitration clause
does not apply clearly and unmistakably to this Em-
ployer. Further, I see even less of an argument that the
interest arbitration clause requires an employer that has
properly terminated its 8(f) bargaining relationship
under Deklewa to engage in negotiations for a suc-
cessor agreement. Accordingly, I conclude that the Re-
spondent’s submission of the dispute to NJAB and its
Section 301 suit to enforce the interest arbitration
award violated Section 8(b)(1)(B) of the Act.
2. Because I would find a violation of Section
8(b)(1)(B) on the basis of the submission to NJAB,
made pursuant to the interest arbitration provision in
the 1984 agreement, a fortiori I would find such a vio-
lation also in the Respondent’s inclusion of an interest
arbitration provision in that submission, which would
bind the Respondent without its consent to an interest
arbitration procedure for any contract following the ex-
piration of the proposed 1987 agreement. But even as-
suming that the Employer were clearly bound by the
interest arbitration clause of the 1984 agreement, I
would agree with the judge, for the reasons stated
below, that the Respondent violated Section 8(b)(1)(B)
by including the interest arbitration clause in its sub-
mission to a body on which the Employer had no rep-
resentation.
Nothing in Collier Electric overruled Board prece-
dent holding that it is unlawful to engage in conduct
calculated to ‘‘insure’’ that an interest arbitration
clause ‘‘would be determined by a panel on which [the
employer or employer association] was not rep-
resented, in patent derogation of its right to bargain
collectively through representatives of its own choos-
ing.’’2 As I understand my colleagues’ position, they
would find no violation because—in the absence of
collective bargaining preceding the Respondent’s
NJAB submission—they do not believe it is clear that
the Respondent was insisting, in the absence of the
Employer’s consent, on the inclusion of an interest ar-
bitration provision in a new agreement. Because I see
nothing in the applicable precedents that would require
us to treat an absence of prior bargaining on the sub-
ject as grounds for immunizing a party’s attempt to
have an interest arbitration provision imposed on an
unwilling party through interest arbitration, I regard the
distinction on which they rely as a distinction without
a difference.
Neither do I see any defense to a violation under a
theory that in seeking enforcement of the NJAB award,
the Respondent was merely bringing a ‘‘lawsuit’’ with
a ‘‘reasonable basis in law and fact,’’ whatever its out-
come. Collier Electric, supra at 1100, citing Bill John-
son’s Restaurants v. NLRB, 461 U.S. 731 (1983). At
least insofar as the Respondent’s suit for enforcement
of the award sought inclusion of an interest arbitration
clause without the Employer’s consent, it lacked any
reasonable basis in law. Neither is it material that the
Respondent was ultimately unsuccessful in binding the
Employer to the provision because the district court
and the court of appeals decided, notwithstanding
NJAB’s conditional inclusion of the provision in the
agreement, to read the provision out of the imposed
agreement.3
263SHEET METAL WORKERS LOCAL 20 (BAYLOR HEATING)
1 The National Labor Relations Board (the Board) has never certified Local
20 as the exclusive collective-bargaining representative of Baylor’s employees,
nor has Baylor ever recognized Local 20 as such.
2 282 NLRB at 1386.
3 See the discussion at 10–16 of the General Counsel’s brief.
4 In June 1988 Baylor filed an RM petition covering all of its employees
except for clerical employees, professional employees, guards, and supervisors.
Continued
It is fair to assume that the Respondent knew the
contents of its submission to NJAB. The Respondent
was also on notice that the Employer would not con-
sent to such a clause, because the Employer, as an 8(f)
contractor, took the position that it wanted to end the
collective-bargaining relationship totally. Because the
Respondent knowingly sought to impose an interest ar-
bitration provision through interest arbitration, I would
find that it violated Section 8(b)(1)(B) of the Act.
Ann E. Rybolt, Esq., for the General Counsel.
William R. Groth, Esq. (Fillenwrath Dennerline Groth &
Baird), of Indianapolis, Indiana, for the Respondent.
Wm. Michael Schiff, Esq. (Kahn, Dees, Donovan & Kahn),
of Evansville, Indiana, for the Charging Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The ques-
tion is whether Sheet Metal Workers Local Union No. 20
(Local 20) violated Section 8(b)(1)(B) of the National Labor
Relations Act (the Act) in its dealings with Baylor Heating
and Air Conditioning, Inc. (Baylor).
In August 1984 Baylor voluntarily adopted the collective-
bargaining contract then in effect between Local 20 and the
Sheet Metal Contractors Association of Evansville, Inc. (the
Evansville Contractors Association). The contract was a law-
ful prehire agreement authorized by Section 8(f) of the Act.
Baylor was neither then nor subsequently a member of the
Evansville Contractors Association.1
The collective-bargaining contract that Baylor adopted ex-
pired by its own terms on April 30, 1987. At various times
in January and February 1987 Baylor notified Local 20 that
it did not intend to be a party to or otherwise be bound by
any new collective-bargaining contract with the Union. And
on May 1, 1987, Baylor withdrew its recognition of Local
20. Baylor’s communications to these effects were timely
and unambiguous.
On February 20, 1987—that is, in the midst of the com-
munications between Baylor and Local 20—the Board issued
John Deklewa & Sons, 282 NLRB 1375 (1987). Deklewa
holds, among things, that:
upon the contract’s expiration . . . either party may re-
pudiate the 8(f) relationship. The signatory employer
will be free, at all times, from any coercive union ef-
forts . . . to compel the negotiation and/or adoption of
a successor agreement.2
But Local 20 objected to Baylor’s refusal to enter into a
follow-on agreement. In fact Local 20 filed an unfair labor
practice charge against Baylor claiming that Baylor’s refusal
to bargain about new agreement violated Section 8(a)(5). The
Acting Regional Director for Region 25 dismissed the
charge, referring to Deklewa. When Baylor adhered to its po-
sition, Local 20—purportedly acting pursuant to the interest
arbitration provisions of the 1984–1987 collective-bargaining
contract—asked the National Joint Adjustment Board of the
Sheet Metal Industry (NJAB) to resolve its dispute with
Baylor, noting that Baylor based its refusal to negotiate with
Local 20 on Deklewa. The NJAB is comprised of equal num-
bers of representatives of the Sheet Metal Workers Inter-
national Association and the Sheet Metal and Air Condi-
tioning Contractors’ National Association (SMACCNA). The
Evansville Contractors Association is a member of
SMACCNA. Baylor is not.
Local 20 sought such action from the NJAB notwith-
standing the fact that the interest arbitration provisions at
least arguably: (1) applied only to disputes between Local 20
and the Evansville Contractors’ Association, not to disputes
between the Union and independents like Baylor; (2) applied
only if the parties had first attempted to negotiate a follow-
on collective-bargaining agreement, which they had not; and
(3) were no longer in effect when Local 20 made its request
to the NJAB.3
Local 20’s position before the NJAB was that Baylor
should be required to enter into a new collective-bargaining
agreement with Local 20 identical in most respects—includ-
ing its interest arbitration provisions—to the 1984–1987
agreement.
In response, Baylor advised the NJAB that since Baylor’s
‘‘collective bargaining relationship with Local Union No. 20
has been terminated and because it has no legal obligation
to continue to recognize and bargain with Local Union No.
20, it does not intend to appear or participate in the National
Joint Adjustment Board proceedings.’’ Baylor provided the
NJAB with a copy of the Acting Regional Director’s letter
dismissing Local 20’s unfair labor practice charge.
In June 1987 the NJAB ordered Baylor to execute a 4-year
agreement with Local 20. In the language of the NJAB deci-
sion:
Baylor shall execute a four-year agreement effective
June 1, 1987 . . . incorporating the same terms and
conditions that have been directed by the NJAB to be
implemented by the Sheet Metal Contractors Associa-
tion of Evansville.
When, notwithstanding the NJAB decision, Baylor refused
to execute a collective-bargaining contract, Local 20 sought
enforcement of the award in the United States District Court
for the Southern District of Indiana.
The Matter at Issue Before the Board
On November 10, 1987, Baylor responded to Local 20’s
District Court action (instituted in October 1987) by filing a
charge against Local 20. That charge led, on September 14,
1988, to the issuance of a complaint against Local 20. The
heart of the complaint is the allegation that Local 20 violated
Section 8(b)(1)(B) by: (1) seeking to bind Baylor ‘‘to a suc-
cessor collective bargaining agreement by submitting the fail-
ure of [Local 20] and [Baylor] to reach a collective-bar-
gaining agreement as a dispute before the . . . NJAB, de-
spite the fact that [Baylor] had already repudiated its 8(f) re-
lationship’’; and (2) instituting an action to enforce the
NJAB award.4
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In an election conducted by the Board on November 30, 1988, the employees
voted against representation by Local 20. The Regional Director certified the
results of the election on December 30, 1988. The effect of this is that even
if Baylor and Local 20 had an 8(f) relationship subsequent to April 30, 1987,
that relationship ended on November 30, 1988. As the General Counsel puts
it, ‘‘the practical impact of the election is that it limits Baylor’s potential mon-
etary liability for any alleged breach of contract imposed by the NJAB to the
time period between May 1, 1987 and November 30, 1988.’’ Br. at 28.
5 The stipulation are well-crafted and thorough. The parties are to be ac-
knowledged for their willingness to put together a stipulated record that has
permitted the parties and the Board to avoid the delay and expense necessarily
associated with an evidenciary hearing.
6 A union may also violate Sec. 8(b)(1)(B) by attempting to use arbitration
to gain an unlawful objective. See Teamsters Local 705 (Emery Air Freight),
278 NLRB 1303 (1986), enf. denied 820 F.2d 448 (D.C. Cir. 1987). But again,
no one claims that Local 20’s actions were intended to gain anything other
than the collective-bargaining agreement it asked the NJAB for.
7 Bill Johnson’s Restaurants, 461 U.S. 731 (1983).
8 See Emery Air Freight, supra, in which the Board assumed, arguendo, that
Bill Johnson’s does apply to arbitration proceedings.
In its answer Local 20 admitted most of the complaint’s
factual allegations (including all jurisdictional allegations)
but denied that it violated the Act in any respect. Because
there are no factual disputes, the parties thereafter entered
into a series of stipulations that obviated any need for an evi-
dentiary hearing.5
The Decisions of the District and Circuit Courts
As just touched on, in October 1987 Local 20 sought en-
forcement of the NJAB award in the United States District
Court for the Southern District of Indiana. Baylor opposed
Local 20’s action on the merits and, in addition, moved to
stay pending action by the Board in this proceeding. But the
Court denied the motion to stay and ordered Baylor to imple-
ment ‘‘all terms and conditions of [the NJAB] decision retro-
active to June 1, 1987.’’ Sheet Metal Workers Local 20 v.
Baylor Heating, 688 F.Supp. 462 (S.D. Ind. 1988), affd. 877
F.2d 547 (7th Cir. 1989). Baylor appealed to the United
States Court of Appeals for the Seventh Circuit. The Board
intervened for the purpose of seeking a stay of the appeal.
The Board’s position before the court of appeals, like
Baylor’s below, was that the court should await action by the
Board in this proceeding. In June 1989 the Seventh Circuit
denied the stay and affirmed the District Court’s judgment.
Sheet Metal Workers Local 20 v. Baylor Heating & Air Con-
ditioning, 131 LRRM 2838.
Did Local 20’s Application to the NJAB Violate
Section 8(b)(1)(B)
Focusing on Local 20’s objectives, two questions have to
be answered. One is whether Local 20 violated Section
8(b)(1)(B) by seeking to have the NJAB compel Baylor to
enter into a new collective-bargaining agreement whose
terms included interest arbitration provisions. The second is
whether Local 20’s efforts to have the NJAB compel Baylor
to enter into a new agreement violated Section 8(b)(1)(B)
even apart from interest arbitration considerations. I will con-
sider the second question first, then return to Local 20’s pro-
posal that interest arbitration provisions be included in the
new agreement.
Local 20’s Efforts to Compel Baylor to enter into a
New Agreement
It is reasonably clear that a union violates Section
8(b)(1)(B) if it seeks by coercive means to have an arbitral
panel establish the terms of a collective-bargaining agree-
ment, at least where the employer has no representatives on
the panel. See Electrical Workers IBEW Local 532 (Brink
Construction), 291 NLRB 437 (1988). Since no one contends
that Local 20 did anything more coercive to Baylor than to
seek relief from the NJAB and the courts, however, the ques-
tion becomes whether the mere request for arbitral action or
for judicial enforcement of an arbitration award may under
any circumstances constitute a violation of Section
8(b)(1)(B).6
On the one hand, there is the ‘‘congressional policy in
favor of settlement of disputes by the parties through the ma-
chinery of arbitration.’’ Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582 (1960). That, of course,
suggests that a union’s request for action by an arbitrator,
standing alone, ought not to be deemed an unfair labor prac-
tice. On the other hand, a union’s request to an arbitration
panel that the panel draft a new multiyear collective-bar-
gaining agreement and impose it on the employer can as a
practical matter be coercive indeed, particularly if the mem-
bership of the panel is stacked in favor of the union and if,
as here, the terms of the collective-bargaining agreement that
the union relies on in seeking the award to not specifically
apply to the employer.
One possible way of dealing with these competing consid-
erations would be to apply the rationale of Bill Johnson’s7
to arbitration proceedings.8
But the approach that seems best to me is one in which
Local 20’s applications to the NJAB and the courts should
be deemed violations of Section 8(b)(1)(B) if, but only if,
Local 20 could not reasonably have believed that it was enti-
tled to the relief that it sought. (I did not create that standard
from whole cloth.) See Brink Construction, supra, and Team-
sters Local 483 (Ida Cal Freight), 289 NLRB 924 (1988).
Both involved the question of whether litigation by unions
against employers was coercive, and in each the Board re-
ferred to the reasonableness of the union’s actions.
The reasonableness of Local 20’s position. There are two
issues here. One is is whether Local 20 could reasonably
have thought that the interest arbitration provisions of the
1984–1987 agreement covered its claim that the NJAB
should order Baylor to enter into a new collective-bargaining
agreement. The other is whether Local 20 could have reason-
ably thought that the policies of the Act did not stand in the
way of the kind of NJAB award the Union sought.
I will turn first to the interpretation of the interest arbitra-
tion provisions. In response to Local 20’s action seeking en-
forcement of the NJAB award, the United States District
Court for the Southern District of Indiana considered whether
Baylor, by agreeing to the 1984–1987 collective-bargaining
agreement, gave its consent to the submission to the NJAB
of disagreements with Local 20 about whether there should
be a successor agreement and, if so, what its terms should
be. The district court concluded that Baylor’s adoption of the
collective-bargaining agreement did constitute such consent
and that the relevant provisions of the agreement were still
in effect when Local 20 applied to the NJAB and when the
NJAB acted.
As noted earlier, when the district court enforced the
NJAB award, Baylor appealed. The Seventh Circuit panel
that considered the appeal unanimously affirmed the judg-
265SHEET METAL WORKERS LOCAL 20 (BAYLOR HEATING)
9 131 LRRM at 2842, quoting AT&T Technologies v. Communications
Workers, 475 U.S. 643, 649 (1986).
10 The NJAB ordered the interest arbitration provisions of the old contract
to be included in the new contract, ‘‘modified to those instances when parties
both agree.’’ The NJAB’s decision also provides: ‘‘It is not the intent of the
NJAB to impose any non-mandatory subjects of bargaining upon an unwilling
party. In the event the National Labor Relations Board or any court having
jurisdiction over the matter determines that any provisions of the agreement
is a nonmandatory subject of bargaining to which a party objected, the provi-
sion will be deleted, and the parties in that event are directed to enter into
negotiations to replace the deleted provision with one that is a mandatory sub-
ject of bargaining. In the event the parties cannot agree on a replacement for
the non-mandatory provision, the NJAB retains jurisdiction to resolve that
issue.’’
11 See, e.g., Brink Construction, supra.
12 See Sheet Metal Workers Local 263 (Sheet Metal Contractors), 272
NLRB 43 (1984); Electrical Workers IBEW Local 135 (La Cross Electrical),
271 NLRB 250 (1984); Sheet Metal Workers Local 59 (Employers Assn. of
Roofers), 227 NLRB 520 (1976).
ment of the district court. In so doing, moreover, the circuit
court held that the interest arbitration provisions of the 1984–
1987 agreement ‘‘clearly and unmistakably’’ covered the dis-
pute between Local 20 and Baylor.9
The issue, once again, is not whether the NJAB acted
properly, or even whether the courts were correct in enforc-
ing the NJAB award. Rather, it is whether Local 20 could
reasonably have thought that its dispute with Baylor was sus-
ceptible to arbitration. Given the unanimous view of the the
district court and court of appeals judges that Local 20’s po-
sition was not merely reasonable, but, rather, was correct, I
can only conclude that Local 20 had a reasonable basis for
believing that its agreement with Baylor authorized the
NJAB to consider the Union’s request that Baylor be re-
quired to enter into a new collective-bargaining agreement.
I recognize that this conclusion amounts to giving limited
collateral estoppel effect to the district court and court of ap-
peals decisions. I also recognize that the Board has in the
past taken the position that a district court’s conclusions do
not preclude the Board from arriving at contrary conclusions,
even where the parties to the district court case were the re-
spondent and charging party in the Board proceeding and
where the district court resolved issues central to the Board
proceeding. Donna-Lee Sportswear Co., 281 NLRB 719 fn.
2 (1986), enf. denied 836 F.2d 31 (1st Cir. 1987); Bay Area
Sealers, 251 NLRB 89, 102–111 (1980); see also Allbritton
Communications, 271 NLRB 201–202 fn. 4 (1984). But here
a circuit court has spoken, as well as a district court. In addi-
tion a relatively recent Board decision seems to leave the
way open for reconsideration ‘‘of estoppel . . . related to
collateral litigation in the Federal courts.’’ Electrical Workers
IBEW Local 532 (Brink Construction), 291 NLRB 437
(1988). Finally, I cannot immagine a situation in which the
Board could find that a union was unreasonable in its belief
that interest arbitration provisions of a collective-bargaining
agreement applied, if two Federal courts had held that the
union’s belief was correct, not just reasonable.
The other reasonableness question has to do with the poli-
cies that the Board expressed in Deklewa. Certainly Deklewa
can be read as entitling an employer to end its contractual
relationship with a union on the termination date of the exist-
ing contract. Yet Local 20, relying on the interest arbitration
provisions of its contract with Baylor, sought to compel
Baylor to enter into a follow-on agreement. The question is
whether that effort by Local 20 was an unreasonable one,
given Deklewa.
That brings us back to the decisions of the district and cir-
cuit courts. Both courts considered Deklewa. The district
court held that Deklewa ‘‘did not nullify Baylor’s contractual
obligations under the interest arbitration clause of the Agree-
ment.’’ 688 F.2d at 473. The court of appeals agreed. (131
LRRM at 2845.)
For the reasons expressed earlier, I think that those conclu-
sions of the district and circuit courts preclude me from find-
ing that Local 20 acted unreasonably in seeking to compel
Baylor to enter into a follow-on contract. (I am not thereby
concluding, of course, that the courts were necessarily cor-
rect in the way they applied the National Labor Relations
Act and Deklewa to the facts at hand.)
An Interest Arbitration Provision in the Follow-on
Contract
In Local 20’s submission to the NJAB, the Union asked
for a follow-on contract that included the same interest arbi-
tration provisions as the old contract, modified only to make
it clearer that the provisions applied to Baylor, Local 20, in
other words, not only wanted a follow-on collective-bar-
gaining agreement. In addition the Union wanted to be in a
position to compel baylor to enter into yet another contract
when the follow-on contract expired.
The NJAB did not grant that part of the relief that Local
20 sought—not fully, at least.10
The district court, while enforcing the NJAB award, noted
that ‘‘interest arbitration is a non-mandatory subject of bar-
gaining and can only be included in an agreement through
mutual consent of the parties.’’ 688 F.2d at 473. And the
Seventh Circuit specified that the ‘‘arbitrator is . . . prohib-
ited from imposing an interest arbitration clause on the par-
ties against their will.’’ 131 LRRM at 2846.
My conclusion is that Local 20 violated Section 8(b)(1)(B)
when the Union asked the NJAB to include an interest arbi-
tration provision in a follow-on contract.
First, Bill Johnson’s does not protect Local 20 since the
Union lost at all stages of the litigation regarding inclusion
of mandatory interest arbitration provisions in the new con-
tract.
Secondly, the law is altogether clear that a union may not
compel an employer to bind itself to an interest arbitration
provision over the employer’s objection.11 And that was
equally true at the time Local 20 made its submission to the
NJAB.12
Local 20 thus had no reasonable basis for requesting the
relief that it sought. Since Local 20’s request to the NJAB
in that respect was unreasonable, and since, under the interest
arbitration provisions that Local 20 sought, the NJAB—a
group in which Baylor had no representation—could purport-
edly impose on Baylor the terms of a third-generation collec-
tive-bargaining agreement, Local 20 violated Section
8(b)(1)(B).
Did Local 20’s District Court Suit To Enforce The
Arbitration Award Violate Section 8(b)(1)(B)
The Interest Arbitration Provisions of the Contract
Drafted by the NJAB
The NJAB decision is ambiguous regarding the interest ar-
bitration provisions of the follow-on contract. But the deci-
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
14 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States of of Appeals Enforcing an Order of the National Labor Relations
Board.’’
sion certainly can be read as precluding interest arbitration
over Baylor’s objection. Under the circumstances I cannot
conclude that, focusing on the interest arbitration provisions
of the NJAB award, Local 20’s suit to enforce the NJAB
award violated Section 8(b)(1)(B).
The NJAB Award, Generally
As for Local 20’s action in the district court to enforce the
other facets of the NJAB’s award, the district court granted
the relief that Local 20 sought, and the of of Appeals af-
firmed the district court’s action. Given the of’s actions in
favor of Local 20, the Union’s suit cannot be said to violate
the Act. See Electrical Workers IBEW Local 532 (Brink
Construction), supra (referring to Bill Johnson’s Res-
taurants).
REMEDY
The NJAB award, combined with the district court and
court of appeals decisions, make it altogether clear that Local
20 may not, over Baylor’s objection, utilize the interest arbi-
tration provisions of the current Local 20-Baylor collective-
bargaining agreement. Thus no affirmative requirement need
be imposed on Local 20 in that respect. But the following
recommended Order does require Local 20 to cease and de-
sist from seeking to compel Baylor from binding itself to in-
terest arbitration provisions over Baylor’s objection, and re-
quires Local 20 to post notices advising of the Board’s ac-
tion.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Sheet Metal Workers Local Union No.
20 a/w Sheet Metal Workers International Association, AFL–
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Restraining or coercing Baylor Heating & Air Condi-
tioning, Inc., in the selection of its representatives for the
purposes of collective bargaining, by utilizing the interest ar-
bitration provisions of a collective-bargaining agreement,
over Baylor’s objection, to request an arbitrator to include in-
terest arbitration provisions in a follow-on contract.
(b) In any like or related manner restraining or coercing
Baylor in the selection of its representatives for the purpose
of collective bargaining.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at all its locations copies of the attached notice
marked ‘‘Appendix.’’14 Copies of the notice, on forms pro-
vided by the Regional Director for Region 25, after being
signed by the Respondent’s representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notice are not altered, defaced, or covered by any
other material.
(b) Sign and mail sufficient copies of the notices to the
Regional Director for posting by Baylor Heating and Air
Conditioning, Inc., if willing, at all places where notices to
employees are customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT restrain or coerce Baylor Heating & Air
Conditioning, Inc., in the selection of its representatives for
the purpose of collective bargaining, by utilizing the interest
arbitration provisions of a collective-bargaining agreement,
over Baylor’s objection, to request an arbitrator to include in-
terest arbitration provisions in a follow-on contract.
WE WILL NOT in any like or related manner restrain or co-
erce Baylor in the selection of its representatives for the pur-
poses of collective-bargaining.
SHEET METAL WORKERS LOCAL UNION NO.
20 A/W SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION, AFL–CIO